Etheridge v. Leary

227 N.C. 636

Opinion

Stacy, C. J.

It is apparent from the uncontroverted allegations of the fourth paragraph of the petition that there is no real controversy bere. Everybody wants the same kind of judgment. Only one result is-desired or contemplated. Tryon v. Power Co., 222 N. C., 200, 22 S. E. (2d), 450. Moreover, to undertake to declare the marital status of persons not before the court, and in the case of Roscoe S. Ange doubtless undesired by him, is clearly in excess of the court’s jurisdiction.

The feeble denial by the respondent, Oscar Riddick, of the validity of his marriage, if, indeed, he really denies it, was perhaps made in an effort to save the case of the feme petitioner. 16 Am. Jur., 315; Anderson, Declaratory Judgments, 805; Borchard, Declaratory Judgments, 478-482. Nevertheless, we think the whole proceeding must go out on the admitted allegations of paragraph four of the petition. The effect of these undenied averments is to deheart the proceeding and render it moot. No question is raised in respect of the attempted appointment of S. M. Etheridge to a new term, which was later revoked. ' It is conceded that the clerk’s authority to appoint justices of the peace is confined to vacancies occurring during a term. G. S., 7-114; Gilmer v. Holton, 98 N. C., 26, 3 S. E., 812.

"Whether the facts here alleged bring the matters within the purview of the Declaratory Judgment Act is not decided.

Proceeding dismissed.